Stochastic terrorism and “lone wolves”: why aren’t Marco Rubio and Carly Fiorina in jail this morning?

I’m not a lawyer, but I have a question. Maybe two.

robert-dear stochastic terrorismInciting someone to break the law – that’s a crime, right? (I know, the Brandenburg test leans heavily on “imminent,” so this is fuzzy, I guess. “Clear and present danger” is also a layer of fur to pick through.)

And you can’t yell “fire” in a crowded theater, right?

Free speech isn’t absolute. You can’t say things that inspire others to commit mayhem (in principle, anyway – the application of the law certainly provides a lot of wiggle room for the culprit).

The concept before us this morning, in light of the shootings in Colorado Springs, is “stochastic terrorism“:


The writer of this piece is onto something important.


And it applies directly to the events in Colorado Springs.

The formula is perversely brilliant:



For months, Republican presidential candidates and conservative Christian members of Congress have been following this script for political gain. Elected Republicans in the states have sought to intimidate women and providers by demanding the release (and even publication) of identifying information and addresses—essentially a target list for perpetrators. They know exactly what they are doing.

The “Planned Parenthood sells baby parts” hoax has been repeated over and over by cynical, pathologically dishonest politicians pandering to “low-information voters” (a charitable euphemism for “willfully and gleefully ignorant”), with Rubio and, even more famously, Fiorina (whose performance in the first GOP presidential debate played like a Joe Isuzu commercial), being front and center right now. 

When you incite to crime, when you tell inflammatory lies designed to stir up anger amongst a hateful and lackwitted audience, it’s only a matter of time before one of them – or more – take matters into their own hands.

Like Robert Dear did this week.

So, to my questions.

First: Are Rubio and Fiorina (and a horde of their co-conspirators) going to be prosecuted for murder?

I know, I know. That was a rhetorical question.

Second: Shouldn’t they be?

This is one isn’t rhetorical at all. When murder happens because you wound up the killer with a pack of inflammatory, demonstrable falsehoods, you’re holding the gun as he pulls the trigger.

But hey, if it isn’t a crime to gin up false evidence in making a case for war against Iraq, a war that killed upwards of 150,000 innocent civilians – many of them women and children – what are a few dead people (one of them a police officer) in a health services clinic between political rivals?

Also: Domestic terrorism: the mainstream media must stop spreading the Lone Wolf Flu

69 replies »

  1. Really? First, calling people who talk about the PP scandal of selling baby parts as if they are “low-information voters” or that it is a hoax just reveals the author’s blatant and dishonest bias. Sorry, but the videos are clear even the full length ones. Second, the shooter was not even targeting PP. None of the victims were either PP employees or customers. The sheer ignorance of this article is staggering.

    • Aha – a low-information voter stops by to defend low-information voters.

      I should thank you for so perfectly illustrating my point. A number of reputable news agencies have done a thorough review of this story and that video and all – all – have realized pretty quickly that it’s a cobbled-together hoax that doesn’t come close to showing what it pretends to.

      But you can’t understand this, and won’t, because this is what the term “willfully ignorant” means. No amount of facts that could ever be presented to you would cause you to step past this ideology of hate and ignorance.

      You’re mentally incapable of understanding how every word you say or write gives aid and comfort to murderous nut cases like Robert Dear. An Iraq vet, a police officer and a defenseless mother of two are dead, and you’re here justifying it. There’s blood on your hands, just like Rubio, Fiorina, the rest of the GOP field and all of the conservative “news” media, because you help propagate the lie that motivated him.

      The only thing staggering here is how you can look yourself in the mirror.

      • So stating an opinion that “reputable” agencies claim is unsupportable should now be considered criminal or immoral?

        You can’t understand this is the fast train to thought police? I noticed you chose not to post my earlier reply pointing out the hypocrisy of decrying “inflammatory lies” while laying the groundwork for an Orwellian nightmare and criminalizing dissent. So maybe you do understand it and that’s your goal?

        No speech act is violence. Period. Someone else has to CHOOSE to act. And this issue isn’t even conspiracy or solicitation. This is just the expression of a difference of opinion itself being considered criminal. Whatever your glossed over misreading of the PP scandal happens to be, my opinion based upon what executives of PP actually said was they were plainly soliciting variable amounts of cash for different body parts from human infants. Which is a federal crime.

        Now did I just commit a crime in stating that opinion? Ludicrous hypocrisy on your part.

        • Except he blames it on what he learned in college, NOT what he was exposed to via media. Nice try, but, actually, it sucks.

        • That you cite a white supremacist website should tell everyone all they need to know about you.

    • “None of the victims were either PP employees or customers.” Except the two who were escorting patients to the clinic.

      The sheer ignorance of Tom Cottone is staggering. Somebody needs to do something about him.

    • Really? First, calling the doctored PP videos a “scandal” just reveals your blatant and dishonest bias. Sorry, but the videos are clear even the full length ones – there is nothing in them to suggest anything sinister happening. Second, saying “no more baby parts” tells us exactly why he targeted Planned Parenthood. The sheer ignorance of your comment is staggering.

      • The honest folk notice that a variable cost for organ ‘donations’ can’t possibly be reasonable. Negotiating per piece prices is obviously, baldly, a sale. You can quote whomever you like denying the obvious, but when PP’s upfront expense is nothing more than a corner in the clinic and the cost of a 10 minute dialogue about the consent form, the amounts they receive based on how much the research firm’s often onsite tech. can harvest can’t be anything BUT profit generating.

        • So the idea that some tissues cost more to extract, package, ship, and keep viable through this process, and thus researchers should be charged more to cover those variable costs, is a “sale?” Sorry, but not even remotely close.

        • Except that has nothing to do with the PP price model. The extractions are performed by the 3rd party research firm usually on site. PP’s costs are exclusively defined by whatever space that tech uses and the 10 odd minute conversation with the client about their consent form.

          Even if PP personnel did the harvesting themselves, which they do not, their costs would be fixed. So the negotiation should be meaningless. They have costs which will be met or not. But as one of their execs noted they want to meet costs plus a little more. The problem for apologists like yourself is that being the literal definition of ‘profit.’

        • Good point. I’d like to see that as well. And the URL that shows where Planned Parenthood’s costs are fixed. You’ll excuse me if I don’t trust a link to an anti-abortion site, however – actual news media, please.

        • You seem to be misunderstanding something. Planned Parenthood, as a non-profit organization, is not allowed to profit from their work. They are, however, allowed to use money made in one area to pay for shortfalls in another. For example, if PP needs to spend more on security due to threats to their clinics and personnel, then they’re legally permitted to charge more for service A in order to pay for that additional security. That’s not profiting from service A, however, regardless of what the service is. Unless you expect that every operating unit of every NGO be revenue neutral, which is an absurd and irrational expectation.

          It’s instructive to point out that every single state investigation of Planned Parenthood that was started as a result of the videos and that has been completed to date has found no irregularities or illegal actions on the part of Planned Parenthood.

          Finally, even if Planned Parenthood actually was profiting from their sale of fetal tissue, I’m perfectly OK with that. The greater the variety of sourced tissues, the more likely it is that science can make progress on any number of medical fronts. Those scientific advancements are only one of the many strong moral arguments in favor of abortion that offset the moral arguments against it. I’ll be writing about those arguments myself in a future S&R post.

        • It doesn’t really matter if you’re okay with it. To be fair, so am I, at least so long as the fetus wasn’t viable. It’s still a violation of federal law to sell human organs. Period.

        • You didn’t read the New York Times link either did you Sam? I posted it _specifically_ because it comes from a bastion of liberal thought and even they opine (paraphrased) that, “Yeah, some profit is probably made selling baby bits. How much? Who knows, it’s a big grey murky question mark.”

          Why do smart guys like you and Brian dilute your arguments by denying an obvious truth? It’s immaterial to the thrust of this blog and it plays right into the hands of the pro-lifers. Once we’re caught lying about one thing we obviously can’t be trusted not to lie about everything else.

          Harvested fetal tissue is sold at a profit disguised in overhead, processing, and shipping cost. So fucking what. It happens every day and the authorities know it. Don’t like it? Work to change the laws. Good luck with that because a majority of us are just fine with things as they are.

        • The so what is it’s illegal, both in spirit and letter of the law. I don’t want PP publicly funded but I don’t even care about organ sales. I’m all for an organ market and abortion of fetuses that at the least aren’t conscious. Infanticide is problematic, but killing an unthinking being, human or not, isn’t.

          What I don’t get is why is the truth important to you but only in the context of what narrative it pushes? Sure, in the long run, not denying obvious inconvenient truths will better serve some cause, but isn’t it important just to be truthful generally?

        • Okay, let’s talk about that NYT article. Let’s do it because it seems to me that a lot of interpretation is going on in ways that ignore and actively damage our grasp of the facts. Also, let’s drag this thread back on target.

          So here are some facts:

          • What PP does is legal. LEGAL.
          • Republicans don’t like it. Of course not. But that’s partisan, and it arises from a combination of theocratic impulse and a willingness to accept the ideological precepts of those constructing movement conservatism in the 1960s and 1970s as the word of Jesus. Which it wasn’t. As I wrote here once, you want to have an honest discussion about abortion, bring me a position that doesn’t ground in theology.
          • Use of fetal cells is MASSIVELY important. If you or your loved ones don’t want to be cured of debilitating or fatal diseases, fine. But as a guy who has a brain condition that will, in all likelihood, eventually kill me, I feel a little different. Also, since said condition is genetic, I’m thinking about sisters, nieces and nephews whom I also hope can avoid what I have. Now, my conversation with my specialist suggests that there will eventually be a cure. And when it happens, the smart money says it will result from stem cell research.
          • PP appears not to be profiting from any of this. I don’t have all the details I need to comment on how much the private businesses involved are profiting. But PP is not profiting.
          • None of the GOP candidates are agitating the Robert Dears of the world to murder people in those corporations, as an aside.

          Now, let’s step beyond this for a second. The real issue that this post addresses, and which we have wandered away from, is about how politicians incite people to murder. Legal, not legal, profit or not profit, beneficial or not beneficial, the likes of Fiorina and Rubio are inspiring well-armed nut cases to kill people. Even if every word a conservative apologist says is true, the only way it matters is if we say fuck that nation of laws bullshit, it’s okay to kill people who don’t share my narrow (and misinformed) view of religion.

          Do we believe in the rule of law or not?

          I’m a little dismayed at the rhetorical slippage that we’re tolerating here. In point of fact, PP is not grabbing toddlers off the streets, stripping them for parts and auctioning them off on the black market. That’s the tonal shade of “selling baby parts.” And that’s precisely what a mass murderer, a man who killed an Iraq vet, a police officer and a mother of two, said as he was being hauled away. No more baby parts. Where did he get that?

          Facts matter. Vocabulary matters. Tone matters.

        • What PP does is legal until someone with a shred of honesty prosecutes and successfully convicts. Then it will stop being legal. Because watching those videos shows a sales negotiation taking place. Which is already illegal. And their pricing isn’t “reasonable” recompense for their expenses. Again, you can hide behind trivia like the lack of prosecution or you can grant the obvious.

          You’re also wrong about it profiting. PP doctors both change their behavior to help 3rd parties maximize their own profits and in turn make a buck themselves. Their fixed costs are floor space and the consent discussion. For which they charge a per part fee of about $50 on average. Their net revenue after expenses costs, etc. was about 31 cents on the dollar. That is a huge profit margin, even in the private sector. Have you done any actual research on this topic? Everything I’ve referenced is easily found on the internet.

          Whether or not stem cell and organ research is beneficial is perfectly irrelevant.

          To your last point, I’ve pointed out the flaws there already. If disagreement on a fact = incitement to murder, you’re on the chopping block already. Is that your intent, or do you just expect to ride the tiger? Stochastic terrorism is simply a means to silence dissent; Orwell would be proud. It sounds very sciency.

        • No, I think your support for stochastic terrorism does just that. Well jail them pending trial first, I guess and then killing them if they resist. For my part, I don’t think you stating an opinion I find even an outright lie merits violence.

  2. Oh dear, Bonesparkle the hyperbolist strikes again. Well, it’s certainly a good topic for conversation and the Doctor is not incorrect in generalities. There are many instances where courts have decided that a particular set of words are criminal therefore not protected by the 1st amendment. A somewhat dry but very germane discussion here:

    As to Planned Parenthood. Of course they sell baby parts and I’m all for it. How do think we cured polio? One side’s euphemism of “harvesting fetal tissue for for processing, shipping, and handling fees” is another side’s “selling baby parts for profit.” It’s the same process however described. And for a layperson quite gruesome but so so scientifically valuable. And how horribly wasteful it would be to discard the little baby bits in a landfill. Abortion is legal. I understand it drives some people mad but get over it. The majority says it’s OK so why waste the byproducts? The profit portion of it is a gray area though that does need legislative review. A fairly neutral discussion of it can be found here:

    As to your final question Dr B, I believe it is highly doubtful verging on astronomically improbable that any court would find enough criminal intent in the rhetoric as presented to discard the free speech element in order to move forward with charges. Just as well I say. Do we really want partisan thought police sifting every word we write or say on the off chance it might incite some one in a million random loon to savagery? Fuck no we don’t.

    • Kingsford Charcoal was created from the byproduct of Ford Motor Company’s automobile manufacturing, namely scrap wood. Saying that harvesting fetal tissue for research purposes, obtain by consent from a voluntary and legal medical procedure, and seeking remuneration for costs associated with that harvesting, is a euphemism for selling baby parts for profit is akin to saying Henry Ford got into the car business to make money selling charcoal.

      • Yes and by the late 20’s Henry Ford and his boy Edsel were requiring the vendors of sub-assemblies to build parts crates at the exact dimensions required for wood kits for the various Model A’s. Pull the nails, into the new car or truck the pieces went, there was no scrap. Where Kingsford sourced from there I can not tell you.

        Back to topic, you don’t like assembly line abortion. To be honest I get a little queasy on abortion for convenience myself but at the end of the day I will always believe in and support women’s right to choose. And that, at this time is majority opinion and law.

        See that’s the funny thing about a representative democracy, we can have some of what we want, but we’ll never as individuals get everything we want. The pro-lifers can’t have what they want right now. The majority and the laws are against them. The outliers among us can’t accept that and like Mr Not So Dear, some are willing to kill to make a point.

        Personally I say we kill them back, but not in Colorado. The majority says no to capital punishment. So be it. I live with it. I’ve got a concealed carry permit in my pocket but I can’t buy 20 round mags. Give and take, I live with it. Can you live with abortion?


        • The comparison of charcoal production vis a vis automobile production was to demonstrate the fallacy of equating harvesting of fetal tissue to selling baby parts, nothing more.


        Ok, comparing one small subsidiary for profit business to another larger for profit business is your evidence that harvesting fetal tissue is not a for profit business. That’s clear as mud.
        Did you even read the New York Times link?

        For once in discussions like this I would love to see a little intellectual honesty. Of course profit is made on selling baby bits. Yes it’s technically illegal but in actuality there are huge gaps in the law, and processing, handling, and shipping fees are padded and money is made. I’m not opposed to it, that’s how business works. Why can’t other pro-choicers admit the truth of this?

        Similar to many Arab countries where interest is considered usury and illegal. So do the banks lend money for free? No, they form partnerships with the borrowers and charge transaction and processing fees. Perfectly legal, same game different name. Hence “euphemism.”

        • I’m opposed to it because if you ignore technical violations of the law, what’s the point of the law? You can’t have rule of law and then ignore whatever law you happen to enjoy the effects of ignoring. One or the other will necessarily have to give.

      • Alright, you think it’s wrong. I think you’re wrong. In stating our opinion publicly did either of us commit a crime? “Stochastic terrorism” is the death of free speech. Talk about unintended consequences, this would make speaking out loud about anything a potential crime.

        • The death of free speech argument is a powerful. Except it simply isn’t true. Go look at hate speech laws in places like the UK and Germany. They seem to be functioning democracies. In fact, in many ways they’re way better than we are.

          Ideology is great. Facts are better.

  3. Just playing devil’s advocate here. Who would like to have a Wahabist madrasa in their neighborhood where no specific call for imminent violence is ever taught in class, but time and again the “enemy” is painted as nothing short of diabolical and worthy only of death?

    I’m going to guess that a fair number of folks reading this would reply, “oh, hell no!” regardless of political persuasion. At the very least, we get a NIMBY problem. At best, we find that there’s a line somewhere, and that this example is far across it. Some folks have a problem with things Rev. Wright had to say, and might place that line accordingly. Others might have a problem with the kinds of things Pat Robertson says, or Brian Fischer. They’ll draw their line. Others get bent by Trump, Fiorina, and Fox News. Others by MSNBC, etc. Lines, lines, lines, with everyone perhaps gritting their teeth while still keeping all that on this side of the line.

    So where is that line? So far we’ve even allowed the line to go so far as to encompass neo-Nazis and their speech, just so long as there is no specific call for imminent violence. So…white supremacy on this side of the line…a very specific type of Islamic radicalization on the other. Do we just prefer one form of radicalization over the other?

    Or should the line be on this side of radicalization, whatever form it takes? If so, whose version of Big Brother gets to decide what counts as radicalizing?

    • I’m going to crawl way out on a limb here and theorize that a lot of people who are all in favor of the free speech this post talks about would have severe issues with the free speech of a madrassa in their neighborhood. Especially when people from that madrassa started walking into First Methodist, the Rotary Club and the local high school and blowing white people away.

      I could be wrong.

      • I have a problem with all religion. I’m not for outlawing any of it no matter how ludicrous it is. And saying people are inhuman and deserve to die IS the type of speech that is already outlawed.

        Repeating facts or opinions about the sale of body parts is nothing close. Why not just grant the very idea of stochastic terrorism as a crime is idiocy and move along?

        • Why? Because I’m sick of trying to run a 21st century society according to centuries-old principles that do not work anymore. Add not to put too fine a point on it, that now serve as tool by which the worst among us can undercut our efforts to evolve a society that’s more productive and fair and equitable and humane for all of us. My New Constitution project gets at this idea in a lot more detail.

  4. I find the idea of Stochastic Terrorism to be very interesting, and I can’t say with any validity whether it’s a real thing in this situation, but I have to wonder what the purpose would be. The impact of an act of terrorism like this is decided localized and arguably has a negative impact on the extremist right. So what’s the point? We can see there have been an uptick in these ‘unstable’ individuals engaging in violent acts, but I don’t see the end game here.

    If this type of terror exists, what exactly are the extreme right trying to accomplish?

    • I think you’re assuming a lot about the right’s ability to predict outcomes. Frankly, doing counterproductive stuff has been their whole brand lately. Doubling down on social issues that a small and dwindling minority cares about, while alienating the booming Millennial population, for instance. Actively pissing off Latino voters who know a racist dog whistle when they hear one, for another instance.

      In other words, they’re throwing red meat to the base but they haven’t quite figured out doing so distances them more and more from the majority.

  5. Sorry Keith. That NR piece purports to prove something conclusively that it doesn’t come close to doing. You’re trying to interpret conversational mannerism as something it isn’t. Not going to post it, not going to pretend it’s worth being serious about.

    • First, Kevin. Second, it doesn’t interpret but directly quotes an executive of PP literally saying that PP affiliates look to recoup costs, plus any extra they can reasonably get away with. I understand that looks damaging to your position and hey it’s your blog in the first place, so do what you want. But that’s it for me then and I’ll definitely spread the fact of your censorship of inconvenient narratives around.

      • saying that PP affiliates look to recoup costs


        plus any extra they can reasonably get away with

        No. The line says: “They want to come to a number that looks like it is a reasonable number for the effort that is allotted on their part.”

        They don’t know exactly what “market value” is, they know they’re being scrutinized, so they try and develop a price that covers cost and that’s it.

        You’re way too willing to believe what you want to believe and to take at face value whatever appears to confirm your preconceived biases. This does nothing for your credibility, which is not great to start with.

        Now, note my comment upthread about sticking to the point of the original post. Adherence to the comment policy starts now.

        • Two things, mostly for Kevin.

          1: Brian addressed all this upthread. No point in me repeating it.

          2: As I said earlier, we’re done with the threadjack. All comments from here on will be about the post, not a sidetrack aimed at confusing the issue.

  6. Stochastic terrorism is a very interesting idea.

    Right wingers tend to hide behind fig leafs like the Second Amendment, the right to free speech, mental illness as a cause rather than religiosity, etc.

    Yes, people who want guns could get them no matter how tough the laws, e.g., Britain. Yes, some mentally deranged people are just looking for an excuse–if not religion and false news stories, instructions from your neighbor’s dog will do, e.g., Son of Sam.

    However the truth is that if guns were harder to get and if they weren’t turning on their TV’s and seeing people they perceive to be reputable and respected leaders encouraging the basest form of behavior, we’d likely have less of this stuff.

      • There isn’t one a day. That ‘definition’ was invented by some Reddit user for the sole purpose of propaganda. By the FBI and Mother Jones, of all outlet’s, count there have been FOUR.

        Also criminalizing speech isn’t going to prevent people from deciding to kill other people.

        • Also criminalizing speech isn’t going to prevent people from deciding to kill other people.

          Perhaps one of the most ridiculous comments this site has ever seen. I’m pretty sure the goal of reducing our firepower isn’t to keep people from wanting to kill others. It’s about making it harder for them to actually DO it.

          Jesus. If you have something intelligent and on-topic to add we’d love to hear it. We won’t be posting any more of this silliness, though.

  7. The topic is broadly expanding the definition of criminal speech based on the random possibility that words may incite violence.Extrapolating this to the real world suggests we’ll need a Stochastic Terrorism Czar and a new bureaucracy, the Department of Homeland Stochastic Terror.

    Then cadres of faceless bureaucrats will be charged with deciding what words to outlaw and then finding and punishing the perpetrators who dare speak them. A grand scheme for the party in power I suppose. What better way to squelch the opposition than by denying them a voice. The flaw of course is that as leadership changes so will the banned word list and one day we may find that the voice that is silenced is our own.

    That in a nutshell is the problem with this cockamamie scheme. I also think Kevin has spoken his position quite lucidly without rancor and am somewhat dismayed although not really surprised at the degree of belittlement and censure you’ve shown him.

    • Why do did insist on saying things can’t be done when they ARE being done? Places like the UK and Germany have rather forceful hate speech codes and democracy seems to still exist there. The thing I’m asking about here is basically a variant on that.

  8. I never said it can’t be done Sam. I merely stated sound legal and moral arguments as to why it shouldn’t be done.

    Let’s revisit your closing interrogatory. “First: Are Rubio and Fiorina (and a horde of their co-conspirators) going to be prosecuted for murder?” and, “Second: Shouldn’t they be?”
    Your intent is crystal clear, yes they should.

    You’re suggesting we incarcerate public speakers for using plain English. “Selling baby parts” is your idea of hate speech. Vocabulary and tone matters you say. As an English major I am entirely certain that fetus is synonymous with unborn child and that child is a synonym for baby. I am equally certain that harvesting in the context of mammals is synonymous with butchering, and exchanging money for product is synonymous with selling.

    Even as a pro-choicer I am still entirely comfortable with equating harvesting fetal tissue to selling butchered baby bits. Same words different tone and if the latter is discomfiting to some then they don’t understand the process. Plain English warrants charges of murder? Not only no but hell no.

  9. Well of course I’d be OK with it Sam. What sort of neanderthal do you take me for? Just for reference about 10% of my business is conducted in the Middle East and I find Arabs to be as honest and trustworthy as any other culture. More so actually looking at who’s screwed who in my business over the years.

    I’m not afraid of Muslim refugees, bring ’em on! We’ll have them drinking beer, racking up credit card debt, and whining and bitching like good Americans in no time.

    • That wasn’t exactly the thrust of the question. What if that madrassa taught that infidels needed killing, and then its students starting killing infidels in the neighborhood? This is precisely the same situation as what we have with GOP pols. I know you adhere to a strict view of the first amendment, but is there no point at which you begin wrestling with the cause and effect proposition?

  10. I do not have a strict view of the 1st (or 2nd) amendment. Read my opening salvo again and visit the provided link for a thoughtful discussion of criminal vs. free speech. The criteria you suggest in this thought piece does not come within a mile of any accepted version of the former.

    Here is Frankie B’s question and the thrust is clear. No specific call to violence is taught. “Who would like to have a Wahabist madrasa in their neighborhood where no specific call for imminent violence is ever taught in class, but time and again the “enemy” is painted as nothing short of diabolical and worthy only of death?”

    Words don’t scare me. Muslims don’t scare me. Louis Farrakhan doesn’t scare me. You know what scares me? True believers of any ilk acting criminally on their neuroses. That and scaredy cat citizens willing to trade away civil rights for a little false sense of security. It’s a lot easier to give them up than it is to get them back.

    • Is a specific CTA required when you teach that certain people are devils worthy of death? I mean, this is what stochastic terrorism kinda means, right?

      That you have a standard is great. But there’s a disturbing reality here. And it gets a little more disturbing every time somebody like Trump edges a little closer to overt fascism. I don’t mean that figuratively, either, I mean it literally.

      Words have power. If we didn’t think so we wouldn’t have a first amendment to argue over to start with.

  11. Abstract advocacy of violence is still protected speech Sam. That’s not my standard, that’s the U.S. Supreme Court’s. There’s even a little test we can run to differentiate between criminal and protected speech. It’s called the Brandenburg or imminent lawless action test.
    Your and Frank’s scenarios do not not meet the requisites of criminal speech.

    You don’t like Trump and I’m with you on that. He’s a lying bigoted crapweasel. I don’t like neo-Nazis either, but I understand why as a society we allow them voice. That throttling speech action is a two way street and that’s why I’m vehemently opposed to your proposal.

    • And finally we arrive at the nut of the argument – the system that is vs the system perhaps ought to be. I used to be a strict constructionist, but I think The New Constitution made clear that those days are past. We continue to live by an 18th century local agrarian code that works well in places, okay in places and not even a little in others. No system works forever, and I’d love us to have one tailored to the reality in which we curretntly live.

      • With “abstract” being the focus of the discussion, of course. And it’s a word that the powers that be take more seriously when it’s aimed in their direction.

  12. Brandenburg v. Ohio was decided in 1969 so one would assume the clerks weren’t transcribing it with turkey quill by the light of whale oil lamps. Law is a living breathing thing and while change may seem slow to nonexistent in the moment, the metamorphosis is dramatic over time.

    I loved your New Constitution series Sam, but like the original it’s just a bare framework that would require lots of legal tests and precedents to flesh it out.

    Amendment II

    No corporate, commercial or other private or publicly held entity shall abridge an individual’s freedom of speech or the rights of a free and unfettered press; the right of the people peaceably to assemble, and to petition for a redress of grievances will not be infringed.

    • 1: Oh, absolutely. I’m already aware of internal conflicts in TNC that the legislature and courts would have to tease out. The doc is a long way from fully baked.

      2: re: your advocacy of violence is protected speech argument, btw, advocate that we blow up Congress with the president inside and get back to me on how protected that is after your little sit-down with the boys who talk up their sleeve. The question is where the line is drawn.

  13. There’s no doubt that there is an ugly wave of xenophobia rising in this country Sam but my question continues to be, is the tail wagging the dog or is the dog wagging the tail?

    Obviously you feel the likes of Trump, Rubio, are Fiorina are lighting the fires of hate and you would like to see them punished for it. I disagree. I think successful politicians tap into the zeitgeist of the public and merely parrot it for support.

    Let’s forget rule of law and reasonable man doctrine. Would silencing the aforementioned speakers by force have any measurable effect on the Islamophobia America is currently experiencing?

    I can’t answer that with anything other than supposition but what I can assure you is that if we as a society set legal precedent for silencing opinion based on the random chance it might incite lawlessness we will all ultimately suffer the consequences.

    The way to beat xenophobia is not by squelching speech. The path lays in familiarization, the same way we turned the tide on homophobia. Acceptance replaces fear once we get to know something.

    It’s just a theory.

    • Clearly this isn’t as simple as cause-effect. Donald Trump didn’t invent racism, and cynical politicians have ALWAYS seized on whatever hatefulness they thought would help them get elected. So yes, absolutely. What we need is a broad, cultural solution that cures the disease, as opposed to merely treating a symptom.

      On that we couldn’t agree more.

      What I wrestle with is the idea that the grand solution cannot include measures to address symptoms. In other words, eliminating the dynamics that inspire hate speech (and its ugly results) doesn’t mean that you can’t also outlaw hate speech. Every society works to instill in its children an understanding that they shouldn’t kill and steal, for instance. But those societies also have laws against killing and stealing.

  14. I noticed in over half the cases mentioned in your link that where the perpetrator was caught they were charged with a hate crime Sam. You and I have no disagreement with the validity of that.

    Where we’re still at loggerheads is the legal concept of conflating first or second person acts of violence with generalized cultural denouncements. Going back to Frank’s madrasa example. If the Imam says, “Death to the infidel Sam Smith who lives at 123 XYZ Street Apt 212”, yes I could see that as chargeable even though it’s not direct action. But if instead he says, “Death to all infidels” it’s certainly rude and inflammatory but it doesn’t meet any current legal definition of a hate crime.

    We could change that legally with test cases and precedents but again do we really want to? Too many lawyers and judges in my family, I definitely admit to being a legal literalist 8^)

    • I think my answer goes directly to the big argument behind the New Constitution. I no longer believe, as I once did, in the primacy of the document we have lived by for so long. As I think I made clear, the system we have works pretty well if, and only if, you’re dealing with an educated, informed, rational population. This was the base assumption that the framers built on, and it made perfect sense at the time because only white male landowners were citizens.

      We have seen the fallacy of the idea that given the freedom to do so, people will work to inform themselves. What we have seen is that the precise opposite is the truth. This sad reality (unless you want to revisit how one qualifies for the franchise, and I’m guessing you don’t) means that our system doesn’t work at all. Or, if it does, it only operates at the base level possible.

      It isn’t a system that promotes freedom and opportunity, it’s a system that allows our worst elements to game it in ways that work against the common good.

      Is what I’m saying consistent with our current system? Of course not. That’s my argument. The current system is fucked, and we’d be better off if we put our minds to the task of figuring out a system that works for the world we currently live in.